News

Most arrested in Occupy Oakland protests never charged

By Paul T. Rosynsky Oakland Tribune

Posted:
10/25/2012 06:40:27 AM PDT

Updated:
04/03/2013 08:47:44 PM PDT

OAKLAND -- The overwhelming majority of the Occupy Oakland protesters arrested during a series of rallies in the past year were never charged with a crime -- an outcome that lends credence to protesters' claims that police overreached as they sought to control the movement.

Since the original Occupy Oakland encampment was torn down by the Oakland Police Department exactly one year ago, more than 700 people have been arrested for a variety of crimes including felony assault and misdemeanor vandalism, according to police.

Yet, most of those protesters never faced a judge as the Alameda County District Attorney's Office pursued criminal cases against just 109 defendants, statistics compiled by the Alameda County District Attorney's Office at the request of this newspaper show. And of those defendants, only 32 have been found guilty.

Representatives of the sputtering movement, which intends to gather Thursday in Frank H. Ogawa Plaza in Oakland to mark the anniversary of the camp's demise, said the numbers confirm their concerns about the mass arrests.

"You could be sure that if the district attorney could prove their case, they would have charged," said Bobbie Stein, a San Francisco attorney who has been active in assisting defendants. "Oakland was sort of reacting and just arresting people."

More than half of the 737 arrests made by Oakland police came Jan. 28 when 400 protesters, as well as journalists, were arrested outside the downtown YMCA after a day of marches that included a failed attempt by Occupy Oakland to take over the vacant, city-owned Kaiser Convention Center near Lake Merritt.

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Oakland police Chief Howard Jordan defended the arrests Wednesday, pointing out that the standard of proof to make a legal arrest is lower than the standard necessary to prove a case beyond a reasonable doubt.

"The lack of charges does not necessarily mean the arrests were unlawful or lacked probable cause," Jordan said in a prepared statement. "However, we have refined our tactics and approaches to more swiftly intervene and apprehend those who we believe are criminal offenders, and I will continue to work with the district attorney to make cases as strong as possible for charging."

Teresa Drenick, spokeswoman for the Alameda County District Attorney's Office, said the office maintains a high standard of proof in deciding what cases to charge and that standard remained in place for the Occupy cases.

"The District Attorney's Office did thoroughly review all of the cases that were presented and made charging decisions based upon the facts and evidence unique to each individual case," Drenick said. "When determining whether to charge a crime, as well as what charges to file, the District Attorney's Office always must determine whether we can prove the case beyond a reasonable doubt."

In fact, Drenick said, some cases still might be charged given that the District Attorney's Office has one year to decide to charge a misdemeanor crime.

There is little question that many laws were broken during the Occupy protests, as vandals smashed downtown windows and assaulted police. But it has also become clear that law enforcement went too far in many cases as it sought to police the protests. Two weeks ago, Jordan announced an unprecedented recommendation to discipline 44 of his officers, including firing two, for violating various department crowd-control policies during Occupy Oakland marches over the past year.

As the city has tried to get last year's troubles behind it, the legal process for those arrested has also ground on slowly.

The statistics show 55 cases are pending while prosecutors have won convictions, either through a jury trial or plea deal, in 32 cases. An additional 22 cases were dismissed in the interest of justice.

In the statistics, there is support for the differing arguments made by both Occupy Oakland protesters and law enforcement agencies about the role arrests and criminal charges have played in the movement.

Protesters have long argued police and the District Attorney's Office have abused their power by arresting protesters and charging them with crimes without merit in an attempt to quell their free-speech rights.

Meanwhile, the police and prosecutors have said the charges filed against protesters were legitimate and pursued because free-speech rights do not allow protesters to break the law and disturb residents and businesses.

Movement representatives seized on the finding that the District Attorney's Office has only filed charges against 109 of the 737 protesters arrested since Oct. 25, 2011.

"OPD has continued to assault Occupy Oakland protesters, confiscate their food and belongings and hold them under cruel conditions in jail for days at a time, only to release most with no charges or with only very minor violations," Mike Flynn, president of the National Lawyers Guild San Francisco, said this year.

At the same time, most of those who were charged with a crime either have been convicted or are on their way to a resolution that involves being found guilty.

Of the 32 defendants found guilty of crimes, all but three were convicted as part of a plea deal. The three who went before a jury were all found guilty.

"In general, the fact that a jury has convicted a defendant after a trial makes clear, in no uncertain terms, that the citizens of our community take these crimes very seriously," Drenick said. "Jurors believed that protesters who violated the law must be held accountable."

The crimes protesters have been charged with vary drastically. They include violent acts such as assault with a deadly weapon and minor misdemeanors such as fighting and using offensive words in public.

A majority of the criminal charges filed against protesters, 87 cases, are misdemeanors with the top three alleged violations being resisting arrest/obstructing a police officer, trespassing and disorderly conduct.

The most serious crimes appear to be felony assault with a deadly weapon, for which seven people were charged, and robbery, for which four people were charged. All but one of the robbery cases have been dismissed.